California Family Law News and Commentary

The following article is reprinted with permission of the author, a Canadian social worker. Be aware that the terminology and rules differ from country to country.

Need Help Sorting Out A Parenting Plan?

Separated parents need to sort out a plan for the ongoing care of the children. Most parents know this as determining custody and access. However, these are now outdated terms, used mostly when settling disputes in higher conflict situations. Children develop best when parental conflict is kept to a minimum and the children are able to experience loving and meaningful relationships with both parents. For parents who cannot determine a parenting plan on their own, there are four main strategies:

Counseling

Counseling works well for parents whose conflict is minimal. The issues are more educational and service is directed at problem solving thus enabling the parents to reach their own conclusions. In this regard, parents can learn about and discuss various options for co-parenting and then determine between themselves what is best for them and the children.

Mediation

Mediation is recommended for parents who are in conflict, each taking a position with regard to the parenting plan. They are unable to negotiate between themselves without the discussion deteriorating and hostility rising. They need a “go-between”, to keep them on track and the discussion appropriate. Mediation can be helpful with low to moderate degrees of conflict. Depending on the skills of the mediator and resolve of the parents, mediation can also work in high conflict situations. Depending on the issues at hand, a mediator with training and knowledge of child development and family issues may offer input or direction to guide the process of negotiation. In the end, parents remain in control of the outcome.

Collaborative Law

With Collaborative Law, both parents have their own lawyer and all negotiations take place in four-way meetings – meetings where both lawyers and both parents are present. Parents and lawyers enter into an agreement to settle matters without the threat of court. All agree that the lawyers used in the Collaborative Law process cannot represent the parents at court. Collaborative Law is currently practiced in two formats. One includes a multi-disciplinary team with members from mental health and financial planning and the other form opts to deploy those professionals on an ad-hoc basis. Collaborative Law is a newer approach to resolving separation disputes so there is no research on how well the approach works or for whom it is best suited. Drawing upon parallels to mediation, it is likely that Collaborative Law is suited to persons who need to know their respective rights are protected by someone fully representing them and where the conflict between the parents is likely moderate to high.

Litigation

Litigation involves each parent represented by a lawyer, settling their dispute with the threat of or actual intervention of the Court – a trial, where the outcome is determined by a judge requiring mandatory compliance by the parents whether they like it or not. Litigation is generally observed in the highest of conflict situations. In these disputes, the parents often have mutually exclusive positions. They are unable to find common ground to satisfy both positions. Conflict and hostility are highest in groups of persons using litigation to resolve a parenting plan. Parenting plans are more often resolved by assigning one parent control of all decisions and the other parent, visitation rights. This is where the terms custody and access come into play and where there is the greatest threat to the well-being of the children owing to the conflict between the parents.

The above approaches can be seen as a continuum of services available to help parents resolve matters. As conflict rises, more intrusive forms of support or intervention are required. Costs rise as conflict rises and more intrusive services are required.

When parents remain civil and the situation is not inflamed unnecessarily, conflict can be minimized and disputes may be resolved with the least disruption to the children and at lower cost to the parents.

Gary Direnfeld, MSW, RSW, is a Canadian social worker.
(905) 628-4847

###